The Framers on the Framers

Does the Constitution protect prosecutors who fabricate evidence?

For you constitutional-law scholars out there with casebooks to update, you may soon have an addition to the growing chapter of cases called "It Sucks To Be You." The facts of Pottawattamie County v. McGhee, the case the Supreme Court hears today, are spectacularly awful. But they may also prove spectacularly immaterial. In the Roberts Court era, "It Sucks To Be You" is a booming industry: Instances of shocking constitutional wrongs that cannot be corrected by constitutional courts.

In 1977, two young African-Americans—Terry Harrington and Curtis McGhee—were arrested for the murder of John Schweer, a retired police officer in Council Bluffs, Iowa. They served 25 years in prison until it was revealed that police detectives and the prosecutors in the case may have set them up. Among other things, the prosecutors, Dave Richter and his assistant Joseph Hrvol, failed to turn over evidence showing that their initial suspect, Charles Gates, had been seen with a shotgun by other witnesses at the crime scene and failed a polygraph test. Instead, the prosecutor and cops relied on the testimony of Kevin Hughes, a 16-year-old accused of stealing a car. The police promised to help him with his various criminal charges, and possibly offered him a $5,000 reward, for his assistance with the Schweer investigation.

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

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Hughes' helpfulness evidently knew no bounds. It ranged from naming all sorts of culprits with solid alibis to changing his recollections about the murder weapon until it fit the crime. Hughes eventually settled on Harrington and McGhee as the murderers and testified against them at trial. Police knew Hughes' story was fishy. Nevertheless, both defendants were sentenced to life in prison. Some 25 years later, after the misconduct was uncovered, the Iowa Supreme Court overturned both convictions, and the men were freed.

Harrington and McGhee sued state officials under 42 U.S.C.§ 1983, which provides for civil suit against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." The question today is whether the two prosecutors are entitled to absolute immunity from such suit.

The Supreme Court has held that while cops have only limited immunity from lawsuits, prosecutors enjoy what's known as absolute immunity for their conduct under most circumstances. (Otherwise every conviction would end in a lawsuit.) But Harrington and McGhee claim that a prosecutor's immunity should not extend to helping the police long before the trial, by, say, collecting false statements and coerced testimony. The district court denied immunity to the prosecutors, and the 8th Circuit agreed that they were not absolutely immune for the misconduct that happened before the trial.

Stephen Sanders, an associate at Mayer Brown, represents the two prosecutors this morning. He garners—by my count—five questions that begin with the phrase "that makes no sense" or something to that effect. Unfortunately for Sanders, the most important iteration of this phrase comes from Justice Anthony Kennedy, whose vote generally tends to be decisive in the whole "Sucks To Be You" class of cases. It is Kennedy who interrupts him to ask whether the court was merely "wasting our time" or "just spinning our wheels" in a 1990 case that gave prosecutors immunity for misconduct if its fruits were not introduced at trial. Kennedy and Justice Antonin Scalia also get Sanders to concede that if a police officer passed along fabricated evidence or another prosecutor— one not involved in the trial—did so, that conduct would not be immune from suit.

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Kennedy looks annoyed. "So the law is, the more deeply you're involved in the wrong, the more likely you are to be immune? That's a strange proposition."

Adds Justice Ruth Bader Ginsburg: "It's strange to say a prosecutor who wasn't involved in the trial would have liability, but as long as the prosecutor turns the investigatory material over to himself, there's absolute immunity."

Sanders explains that fabricated evidence itself doesn't constitute a constitutional violation because that can happen only when it's introduced at trial. Justice Sonia Sotomayor—sporting earrings the size of small saucepans today—cuts him off. "But that makes no sense, because neither a police officer nor a different prosecutor who fabricated evidence would be liable," if the constitutional violation only happens at trial.

Ginsburg can't understand how the prosecutor cannot be said to have caused the original constitutional violation: "If this fabrication had not occurred, there never would have been any trial."

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Deputy Solicitor General Neal Katyal is in this case on the side of the prosecutors. He says Harrington and McGhee are asking this court "to announce for first time ever that there is a free-standing due process right not to be framed." (Founding Fathers. Rolling. Graves.) Justice Stephen Breyer objects to this framing of the issue, saying "there is no free-standing right. There is just a right not to convict a person with made-up evidence."

Katyal replies that "section 1983 is not the font of tort law. You need to isolate a constitutional violation. That violation begins when the fabricated evidence is introduced at trial."

Asks Scalia: "But then how do you get the policeman who has fabricated the evidence?" Replies Katyal: "Because the policeman essentially induces the prosecution at an earlier point of time."

Asks Kennedy: "What if the prosecutor knows it's fabricated evidence? What if the police officer fabricates the evidence and says: 'Mr. Prosecutor, I'm a very bad man; I fabricated the evidence.' " Katyal says there is still no due process violation.

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Kennedy sighs. "Again, the more aggravated the tort, the greater the immunity. ... You're basically saying you cannot aid and abet someone who is immune. And that's just not the law."

Katyal clarifies that "absolute immunity doesn't exist to protect bad apples. It reflects a larger interest in protecting judicial information coming into the judicial process." He says, "If prosecutors have to worry at trial that every act they undertake will somehow open up the door to liability, then they will flinch in the performance of their duties and not introduce that evidence."

But Sotomayor retorts that you want a prosecutor to "flinch when he suspects evidence is perjured or fabricated." In fact you want him to do more than just flinch. You want him to stop. She adds that the two prosecutors in this case were never disciplined for their conduct.

Katyal says there were "14.4 million arrests in the year 2006 and 1.1 million felony convictions." Deciding this case against the prosecutors would allow any of those prosecutors to be sued for fabrication of evidence, since, as he puts it, "criminal evidence, unlike civil evidence, is messy. It often involves cooperation agreements, leniency agreements and the like." (This is itself something of a problem, one might contend.)

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Former Solicitor General Paul Clement represents the two wrongfully convicted defendants. Justice Samuel Alito stops him with a very long question, the gist of which is that criminal witnesses are "not John Q. Public—who have never engaged in any wrongful activity." They are all liars and CFOs and mobsters and drug smugglers, and they all have "criminal records, previously committed perjury, made numerous false statements." Under Clement's reasoning, is the prosecutor on the hook for all of their deception too?

Clement suggests that the line for absolute immunity should be whether the fabrication "took place before probable cause attached," and Alito snaps back, "That's an entirely false picture of the way any sophisticated prosecution is handled today, completely false."

Clement warns the court of the perverse incentives it would create if the justices give prosecutors absolute immunity for everything they do, regardless of when it happens: "Suppose you're a prosecutor. You've participated in misconduct before trial. You now have the decision to make: OK, I was complicit in the fabrication of this perjured evidence; should I put it on into evidence? Well, let's see. If I don't put it on into evidence and I come clean now, I'm actually liable for the arrest and all the pretrial detention. If I actually introduce it into evidence now, I'm scot-free."

Breyer is worried that this rule will "discourage prosecutors from becoming involved in the witness-questioning process," which, in his view, acts as a "kind of check on the police."

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But then, because he can, Clement ends with a three-pointer: "If the court's going to go back to first principles, let's look at the statute Congress passed in 1871. ... This is one of the great civil rights statutes. I think it's clear, from this court's cases, that the police officer that engages in misconduct has committed a grave, grave constitutional violation and ought to be liable. I think the prosecutor who engages in the pretrial misconduct and then doesn't participate in the trial is just as liable as that police officer. And I can't think of a single reason why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct, but completed the scheme by committing further misconduct at trial."

Swish.

The question for the court today is whether it is ultimately more worried about chilling prosecutors who want to introduce possibly fabricated evidence or giving them good reason—and the absolute freedom—to do so.

Correction, Nov. 6, 2009: This article originally contained a photograph misidentifying the U.S. Senate as the U.S. Supreme Court due to an erroneous caption by the photo provider.